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Be prepared before enforcement arrives. In this Lawline course, "When ICE Comes Knocking: What You Need to Know to Be Prepared for I-9 Audits, ICE Subpoenas and Judicial Warrants," Amy Peck of Jackson Lewis P.C. breaks down the critical legal obligations and practical steps employers must follow when facing I-9 inspections, ICE subpoenas, or full-scale judicial raids.
What Are the 5 Immigration Status Categories?
Understanding how employees are classified is foundational to I-9 compliance. Every person in the U.S. falls into one of five categories that determine their work eligibility:
- U.S. Citizens
- Noncitizen Nationals (e.g., born in U.S. territories like American Samoa)
- Lawful Permanent Residents (Green Card holders/I-551)
- Permanently able to live and work in the U.S.
- Non-Citizen Work Authorization
- Non-immigrant or temporary status (e.g., H-1B, F-1, J-1, TN, TPS, Asylee/Refugee)
- Employment Authorization Document (EAD) holders
- Unlawfully Present or Out-of-Status
- Individuals not legally authorized to work in the U.S.
Why it matters: Permanent statuses remain valid even if the document expires. Temporary and unauthorized statuses require close monitoring and proper documentation.
Why Is the I-9 Form So Legally Significant?
Employers are required to complete Form I-9 for every active employee. Mistakes or missing forms can result in civil penalties exceeding $2,800 per error. Key compliance points include:
- Form I-9 must be completed by:
- Section 1: No later than the first day of employment
- Section 2: Within three business days ("Monday/Thursday Rule")
- Section 1: No later than the first day of employment
- Employers cannot dictate what documents an employee provides
- Restricted Social Security cards (e.g., "Valid for work only with DHS authorization") are not acceptable as List C documents
- Copies of documents are not required but must be retained if made
What Are Common I-9 Errors?
Errors that frequently appear in audits include:
- Missing or incorrect document numbers and expiration dates
- Incomplete Section 2 fields (e.g., first day of employment, issuing authority)
- Mistakenly re-verifying permanent residents
- Failing to reverify expired EADs or temporary statuses in Supplement B
How Should Employers Respond to an I-9 Audit or ICE Subpoena?
An I-9 audit typically begins with a Notice of Inspection served by ICE agents. Employers have three business days to produce requested documents unless errors on the notice (e.g., incorrect business name) justify a request for reissuance.
Key steps during an audit:
- Do not waive the three-day response period
- Retain copies of all submitted I-9s
- Avoid making changes unless legally advised
- Document and photograph interactions discreetly, especially if law enforcement is present
Administrative subpoenas may accompany the notice and request additional records (e.g., payroll, IT logs). These are not judge-reviewed and can be challenged or negotiated.
What Happens During an ICE Raid?
A judicial warrant enforcement action (i.e., a raid) is a rare but serious escalation. Unlike audits, raids involve:
- Entry without consent (based on a judicial warrant)
- Seizure of documents and arrest of unauthorized workers or even managers
- Coordination with local law enforcement
- Public visibility and significant operational disruption
Important legal note: Do not interfere with officers. Consent is not required, and obstruction may lead to arrest. If there are legal concerns about the warrant or procedures, they should be addressed post-raid through legal channels.
How to Handle a Notice of Suspect Documents
If ICE believes certain employees are not work-authorized, they may issue a Notice of Suspect Documents:
- Employers have 10 days to terminate listed employees
- The list may include individuals who passed E-Verify
- Errors can occur, and employees have a right to contest
A Notice of Discrepancies may follow, identifying workers who may be unauthorized but whose status is unclear. These cases require:
- Careful legal handling
- Requests for additional documentation
- Sensitivity to ID theft or document misuse
What About Social Security No-Match Letters?
Social Security No-Match letters notify employers when an employee’s name/SSN combination doesn't match SSA records:
- Do not use these letters alone as grounds for termination
- Follow up with employees and allow correction opportunities
- Mistakes can result from typos, name changes, or other benign causes
Key Takeaways
- Every employee must have a properly completed Form I-9
- Employers must know the difference between permanent and temporary work authorization
- Never accept restricted Social Security cards for I-9 purposes
- Audits and raids are legally distinct events and require different response strategies
- Use legal counsel to interpret subpoenas and handle notices of suspect or discrepant documentation
- ICE activity is increasing, particularly under executive orders that heighten worksite enforcement
To gain deeper insights and stay fully compliant, watch the full Lawline course "When ICE Comes Knocking: What You Need to Know to Be Prepared for I-9 Audits, ICE Subpoenas and Judicial Warrants," presented by Amy Peck of Jackson Lewis P.C.
The content of this article is provided for informational purposes only and does not constitute legal advice.
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